Law as Tactic: Palestine, the Zapatistas, and the Global Exercises of Power

Indigenous Women and Zapatismo (Source: Columbia University) Indigenous Women and Zapatismo (Source: Columbia University)

While the Palestinian struggle has its contextual specificities, the violence, dispossession, and disenfranchisement that Palestinians experience daily is not unique to them even in the present moment. Whether their condition is one conceptualized as “statelessness,” “occupation,” or “second-class citizenship,” that Palestinians must appeal to external sites and institutions for their “rights” renders their contemporary condition not unlike that of many people worldwide whose States, having undergone neoliberal restructuring in the last decades, have intensified their police functions and lost their effectiveness as sites where social inequalities could be directly addressed.1

The weakening of the State’s redistributive capacity, its heightened role in the privatization of land and resources, the increased surveillance and punishment of its own citizens for the promotion of a “good business climate,”2 and the crisis of representation associated with this restructuring has led many to similarly turn to non-governmental organizations (NGOs) and international legal bodies in the hopes to balance out inequities. In such a context, it has become the case for many that external appeals to “rights” have also come to form their center of protest even if they are not formally conceptualized as stateless people. This is a trend that has proven dangerous because, as Palestinians’ own troubled engagements with both international and Israeli legal venues have similarly revealed,3 appealing to actors and institutions that have not historically been kind to them risks reinforcing the very forces that oppress them. In light of these realities, the question over what usefulness law and rights-based claims can have for emancipatory struggles worldwide has become all the more urgent.

Such common experiences should signal to us the existence of a shared logic of domination functioning globally4 that can place Palestinians into an exchange of analyses with other subjects in struggle over what liberation strategies might be more effective for our time.5 In the short space of this essay, I place some aspects of the Palestinian condition into conversation with Shannon Speed and Alvaro Reyes’ analytic of how the Zapatistas in Mexico have been able to subversively deploy rights-based claims to work at the service of self-determination, as Speed and Reyes detail in their essay, “Rights, Resistance, and Radical Alternatives: The Red de Defensores Comunitarios and Zapatismo in Chiapas.”6 The Zapatistas,7 an almost exclusively indigenous movement in the Mexican State of Chiapas that rose up in arms against the Mexican government on 1 January 1994;8 took back and held onto large tracts of land; and subsequently underwent peace negotiations that would go unfulfilled by the State,9 make use of “indigenous rights” not because they believe such rights will in themselves grant them autonomy, but because they serve as obstacles for the Mexican government in interfering with the Zapatistas’ project to construct autonomy. While I am able to highlight only a few of its key arguments below, the essay is worth reading in its entirety. How Speed and Reyes highlight the Zapatistas as a concrete example of how “law” can be rejected as a force that would determine and limit what subjects in struggle are able to do, and be deployed instead as a tool that might provide them with space to construct what they themselves determine, bears significance for both analyzing and tackling the fraught relationship Palestinians and so many others have with rights-based claims and the use of legal venues in the contemporary context.

Law and the Exercise and Circulation of Power

The Zapatistas, it is important to note at the outset, would reject notions that law is a question of innate “bad” or “good,” and engage it instead as a relation of force that can be complicit and effective. In delineating how this could be so, Speed and Reyes argue that law’s essence cannot be adequately mapped without analyzing “the law as a particular form and structure for the exercise and circulation of power.”10 “Law” under modern Western juridical thought, they point out, has meant a very specific type of exercise and circulation: one where a sovereign authority endowed with our “rights” (the ruler), is tasked with granting, recognizing, and enforcing them for us (the ruled).11 This radical separation between ruler and ruled should signal for us a sharp contrast between the exercises of sovereignty and the exercises of self-determination, rather than their conflation.12 For the sovereign, as Speed and Reyes write,

is an ‘authority’ that throughout the history of jurisprudence has been most effectively justified through the philosophical fiction of the ‘contract.’ The fiction posits that due to the fear of others, individuals in the state of nature give up their unlimited ‘rights’ to a sovereign. This sovereign, through the collection of these rights, holds absolute power within a society and is in turn charged with the task of mediating among competing individual interests with the goal of creating social unity and peace.13

So while “rights” can have multiple meanings, when they are exercised in courts and legal bodies, they are placed within a logic that renders them meaningful through the permission of such an external authority. These legal exercises assume that “politics” or the exercise of power more generally must take place through the positivist practice of attorneys, courts, and legislatures. And because these practices help promote the myth that people are not collectively capable of “doing politics” without the framework, consent, and support of an authority external to them, deferring to such an authority circulates power in ways that reinforce the very forms and logics of domination that movements for self-determination seek to struggle against.

It was in recognizing that such exercises do not do away with the relation of domination characteristic of warfare (but rather, perpetuates it through a different form and change of venue) that could lead Frantz Fanon and other revolutionary intellectuals to underscore the point: “To wage war and to engage in politics are one and the same thing.”14 In turn, it is what would lead liberation movements worldwide to link military logic (i.e. strategy and tactics) to political battles to the point where they could even devise ways to deploy law back onto itself without letting it overcome them.15

On Strategy and its Tactics

In maintaining that there is no inherent link between the application of law and the attainment of justice, critical legal analyses on Palestine are wise to caution that legal recourse should be engaged a means rather than an end.16 But due to the modern legal system’s propensity to capture political activity into a circulation that reproduces social relations of domination, a sharper distinction could be made and securely maintained between the use of means (what we might refer to as “tactics”) and their relationship to the ends (the “strategy” that would guide the tactic). For if tactics are flexible and even disposable methods of achieving firm strategic objectives,17 and if legal appeals are to be understood as only methods toward the greater objective of Palestinian self-determination, then law cannot function as merely a method when an extra-legal political project on the ground that Palestinians themselves actively shape and determine is missing—one that would guide the when, the where, the how—and even the if—of the use of law. Absent the strategy for self-determination, legal appeals can easily cease being tactics and become the strategy itself, shifting “politics” away from the people and channeling the bulk of their activity into a system with rules, conditions, and tendencies that are not of their own making.

The challenge here comes in believing that a political project can be created right now by Palestinians and other emancipatory movements that would allow self-determination to flourish irrespective of external legal approval. But indeed, mustn’t it? For, insofar as self-determination is to be the goal, self-determination by definition cannot be granted by an external body. For any emancipatory movement to ask an external authority to “grant” self-determination renders self-determination contingent on that authority’s will and recognition, thus providing that external authority the legitimacy to determine for them. Moreover, the activity of asking for self-determination to be granted is a productive act: it produces those doing the asking as subjects that believe that self-determination is a thing external to them, rather than existing in their own self-activity.18 Put another way, the activity of deferring to others for our “rights” prevents us from believing it possible to exercise our rights ourselves. On the contrary, it renders us willful participants in the opposition’s strategy to keep us convinced of our own incapacity.

But how can movements begin creating the conditions for self-determination when they are confronted with violence? Here we might do well to recall that domination can take various, overlapping forms. While violent repression is one and coercion another, the most efficient forms are those fueled, not by weapons, but by the willful participation of the dominated into their own domination.19 To briefly illustrate, during the First Intifada, Israel was at its most fatigued on the ground and weakest internationally because it was forced to make so central the use of force. This problem for Israel was then alleviated by Palestinians’ willful participation in the Oslo Accords, which had the effect of relieving Israel from relying so centrally on violent repression and rendering the State’s legitimacy and favorable reception stronger than it had been historically. Seen from such an angle, the term “peace process” is not at all inconsistent with the current state of affairs; indeed, it is quite apt.20

This is not to say, of course, that willful participation by some Palestinians into their own domination did not exist before Oslo, or that Israel has ceased resorting to violent repression since Oslo. The varied forms of domination (repression, coercion, willful participation) exist in overlapping and complimentary ways; each form’s contextual development and degree of intensity depending on its efficacy in that given context. The argument here is that willful participation is a most efficient form and without a doubt, a most pernicious one because it obscures force. But the argument is also that the form used is not determined by Israel, but determined by the type of resistance that Israel is made to confront. In other words, it is resistance that is primary; the form that domination takes is the reaction.21

The recognition that Palestinians’ willful participation in Israel’s peace helps fuel their own deteriorating situation should lead us toward a further recognition: power is productive. And if power is productive, with willful participation so central in fueling and sustaining what is produced (and, conversely, with constant refusal so central in fueling and sustaining what else can be produced), it is possible to produce systems that continually channel power away from bodies that rule over society and toward the dispersal of power throughout society itself.22 The Zapatistas, who I return to in the next section, provide a concrete example of the creation of such a system, along with an analysis of how such a system can then guide the tactical deployment of rights-based claims.

The “Good Government” Strategy in Chiapas

With the inability of the Mexican State to comply with the constitutional recognition of indigenous rights and autonomy as negotiated under the peace accords that followed the 1994 uprising, the Zapatistas decided to unilaterally implement and defend their own rights and autonomy rather than continue waiting. They created within their territories their own system of government, one currently centered around the work of the “Good Government Councils” (Juntas de Buen Gobierno). The Councils are tasked with balancing out inequalities across Zapatista communities; mediating conflict; overseeing the implementation of laws decided by the communities themselves; and helping monitor the construction of projects such as subsistence cooperatives, autonomous schools, water systems, and collectivized clinics. The Councils also serve as contact points for national and international guests who wish to visit, donate, or ask permission to do research that is beneficial to the communities. Notably, the Good Government’s structure and function was deliberately designed to alter the power relationship NGOs can have to the Zapatistas, for NGOs are today only allowed into Zapatista territory if they wish to propose (rather than impose) productive projects.23

In constructing their autonomy, it is important to emphasize, the Zapatistas do not seek independence to build another State under a new sovereign. Zapatista “autonomy” is guided by a radically distinct philosophy and practice of social organization: the principle of “rule by obeying” (mandar obedeciendo), a social relation wholly incompatible with and inherently antagonistic to sovereignty’s relation of “command-obedience.”24To replicate the latter would be fundamentally at odds with a project that understands its aim as the establishment of freedom, not a reversal of positions within domination, or a conversion of the oppressed into new oppressors.25 The ideological clarity and implications here are profound, for as a strategy, it reveals the ordering of human relations over the past 500 years to be absolutely illegitimate while working toward making it wholly irrelevant.

The Zapatistas’s system of self-government can be understood as a strategy to exercise self-determination if we understand that “government” is not a moral or ideological question of “bad” or “good,”26 but a strategy to put the exercises of power into a specific circulation. The five Good Government Councils (so-called, the Zapatistas say, “not because they are already ‘good,’ but in order to clearly differentiate them from the ‘bad government,’”27) are each headquartered in the zones of Zapatista territory and serve as coordination rather than centralization points for hundreds of Zapatista communities networked throughout Chiapas, each with local-decision making structures undertaken in assembly form that the Councils are held accountable to. Members of each Council are not politicians but members of the communities who rotate into positions, are immediately revocable, and are not paid. “This circular practice,” Mara Kaufman writes in an in-depth study of the Zapatistas’ theory and practice, “keeps power firmly at the base throughout the political process and makes political representatives, during their ‘turn,’ responsive and responsible to that base.”28 This structure of organization also circulates power in a way that wards off the professionalization of politics and the specialization of governing, effectively doing away with the division between the ruler and the ruled. As Kaufman writes:

In this system, politics itself is not a sphere separate from all other realms of life: one does not become a politician; there are no politicians. Governing is rather a necessary social task in which all must participate to maintain organization and cooperation. […] making government a common responsibility rather than a professionalized category delinks it from privilege or prestige and thus eliminates the temptations or vices of wielding power over others.29

With such a system on the ground, the Zapatistas can then deploy rights-based claims as a truly tactical maneuver. “Indigenous rights,” gained in the second half of the twentieth century by indigenous people worldwide demanding space for their customary practices to function unimpeded, are deployed by the Zapatistas as problematic obstacles for the Mexican State to interfere in their construction of autonomy.30 That is, rather than believing in “indigenous rights” as an end goal that will grant them autonomy, the Zapatistas position such “rights” as impediments for the State, thus allowing the Zapatistas an ability to, Speed and Reyes emphasize, “accumulate the space necessary to further expand their internal autonomy projects.”31 And as Speed and Reyes further point out, it is Zapatista community members themselves who study national and international human rights law, and are themselves trained in maneuvering the Mexican legal system and in documenting human rights abuses.32 Such capacitation effectively does away with the need for intermediaries who may conceptualize “rights” differently and inadvertently reinforce the architecture of power that the Zapatistas’ project seeks to dismantle at local, national, and global levels.33

Palestinians and the Global Exercises of Power

Legal appeals to self-determination, equality, and universal human rights can help raise awareness of and garner sympathy for some important struggles, especially among Western audiences. While this has indeed been the case for Palestine over the last two decades, it also cannot be ignored that the outcomes have been paradoxical: while awareness of and sympathy for Palestinians in the West is today at an all-time high, the situation on the ground continues to slip further into its most dire. Yet it may not be that these two phenomena are paradoxical but inter-related, as efforts to garner the ear and support of Western audiences require that protest methods be shaped into forms the West will deem legitimate. While these methods may be determined by Palestinians themselves (e.g. Boycott Divestment Sanctions, awareness campaigns, non-violent demonstrations), when their grounding strategy is legalistic they continue to assume that the right of Palestinians to self-determine and be treated equally as human beings will be ultimately granted by a small cadre of actors in the carefully controlled arenas of courts and legislatures. In the meantime, Palestinians are made to wait.

Having famously declared two decades ago that “We do not need permission in order to be free,”34 the Zapatistas continue providing an example that self-determination exists in its own construction. Although the strength and endurance of their project has made them a common referent for such autonomous philosophies and practices today, autonomy’s paths take multiple forms and exist in diverse locations.35 In Bolivia, for example, Raúl Zibechi highlights how the indigenous Aymara self-organize in the urban context of El Alto through general assemblies, neighborhood council meetings, and barrio community groups.36 These practices have manifested into the provision and organization of municipal works; the operation and maintenance of schools, parks, and radio stations; and the creation of systems for conflict resolution and community justice. Intervening in the material conditions of their own daily existence has, in turn, strengthened their capacity to unleash powerful mobilizations that have defeated neoliberal projects, toppled presidents, and warded off co-optation into State structures. Likewise in Syria, Yasser Munif documents how the liberated town of Manbij, even while Bashar al-Assad’s regime was still present on the ground, quietly constructed local committees networked in council-fashion to coordinate resistance activities between the town and its agricultural hinterland.37 With the town now having forced the regime’s ground forces to flee, the committees and council are shifting their emphasis toward self-governing activities that attempt to develop political and judicial mechanisms, even as they continue warding off the State and, more recently, al-Qaeda organizations seeking to co-opt their gains.

While emancipatory movements like those in Mexico, Bolivia, and Syria are being built by people who are not formally conceptualized as stateless, they nevertheless experience their States as openly hostile bodies and wholly inadequate as sites to balance out social inequalities. This has led them to construct systems themselves for resistance, survival, and ways of doing that are based on mutual care, dignity, and respect, building from that which already exists in their daily lives, and expanding, improving, and intensifying from there.38 These practices are, quite notably, reminiscent of those that Palestinians themselves showed the world were possible during the First Intifada, and whose tendencies still exist today in places as diverse as the Palestinian villages inside Israel, the refugee camps, the Gaza Strip, Jerusalem, and the villages in the West Bank.

Such commonalities across the globe today should encourage us to more critically examine a shared logic of domination we are currently living under, and take seriously the emancipatory strategies that groups are themselves constructing and sharing with each other for mutual reinforcement.39 This would entail, however, that our analyses radically shift away from a dependence on the legal categorizations that fragment and divide subjects in struggle worldwide, and examine instead the common experiences and potentials of the present moment. If, as Nimer Sultany can argue, legal compartmentalizations should not hide from us a common logic at work against Palestinian “citizens of Israel” and Palestinian “non-citizens” alike, irrespective of their legal status and geographic locations,40 we can similarly put the Palestinian condition into conversation with others well beyond Palestine who are also resisting and organizing against discriminatory systems whose effects are also violence, dispossession, and disenfranchisement.41 While legal categorizations can be helpful in pointing to the legal tools that are available to us in our specific contexts, they cease being useful when we allow them to determine who we are, what we are allowed to do, and whom we can walk with 42.

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*I thank Thayer Hastings, Salma Abu-Ayyash, Ryvka Barnard, Susan Barney, Gavriel Cutipa-Zorn, Rachelle Friesen, Faris Giacaman-Taraki, Budour Hassan, Mazen Masri, Audrey Ann Lavallée-Bélanger, Ahmad Nimer, Vivien Sansour, and Maysoon Sukarieh for helpful comments on earlier drafts of this essay, and for the engaged discussions on some of its arguments.


[1]Michael Hardt and Antonio Negri (2001) Empire, Harvard University Press.

[2]David Harvey (2007) A Brief History of Neoliberalism, Oxford University Press.

[3]Darryl Li (2011) “Roundtable on Occupation Law: Part of the Conflict or the Solution? (Part VI)” Jadaliyya; Nimer Sultany (2011a) “Roundtable on Occupation Law: Part of the Conflict or the Solution? (Part V)” Jadaliyya; Ahmad Amara (2012) “Moving Towards Full-Scale Judicial Boycott in the Naqab” Jadal 13 (May); Mazen Masri (2012) “Back to Politics?” Jadal 13 (May); Mezna Qato and Kareem Rabie (2013) “Against the Law,” Jacobin 10.

[4] Subcomandante Insurgente Marcos (2001) “The Fourth World War.”

[5]Michael Hardt and Antonio Negri (2004) Multitude: War and Democracy in the Age of Empire, Penguin Press.

[6]Shannon Speed and Alvaro Reyes (2005) “Rights, Resistance, and Radical Alternatives: The Red de Defensores Comunitarios and Zapatismo in Chiapas,” Humboldt Journal of Social Relations 29 (1): 47-82.

[7]Zapatista Army of National Liberation (EZLN).

[8]The day the North American Free Trade Agreement (NAFTA) went into effect. NAFTA’s implementation was to do away with the constitutional protection of commonly held indigenous lands, thus making them available for privatization. In the first days of the uprising, the Zapatistas referred to NAFTA as “nothing more than a death sentence to the Indigenous ethnicities of Mexico, who are perfectly dispensable in the modernization program of [President] Salinas de Gotari” (Tom Hayden (ed.) The Zapatista Reader, Avalon Publishing Group, 2002: 216). For more on the history and context of the 1994 Zapatista uprising in their own words, see “The Sixth Declaration of the Lacandón Jungle” (2005) [communiqué].

[9]The San Andrés Accords (1996) were an agreement negotiated between the Mexican government, the Zapatistas, and numerous other indigenous groups in the Mexican town of San Andrés Larráinzar, Chiapas in the years following the uprising. The Accords called for changes to the Mexican constitution to recognize the autonomy of indigenous peoples.

[10]Speed and Reyes (2005: 49).

[11]Speed and Reyes (2005: 49).

[12]For a developed treatment of how self-determination is fundamentally at odds with legal sovereignty, see Alvaro Reyes (2009) Can’t Go Home Again: Sovereign Entanglements and the Black Radical Tradition in the Twentieth Century, Doctoral Dissertation, Durham, NC: Duke University.

[13]Speed and Reyes (2005: 49).

[14]Frantz Fanon (2007) The Wretched of the Earth, Grove Press (p. 83). Also, Mao Tse-Tung: “It can therefore be said that politics is war without bloodshed while war is politics with bloodshed” (1938, “On Protracted War”); and Huey P. Newton: “Politics is war without bloodshed. War is politics with bloodshed” (1969, “Functional Definition of Politics”).

[15]Reyes (2009).

[16]See for example, Nimer Sultany (2011b) “Three Comments on the Boycott Movement,” Jadal 11 (September).

[17]Following Che Guevara: “In military language, tactics are the practical methods of achieving the grand strategic objectives. In one sense they complement strategy and in another they are more specific rules within it. As means, tactics are much more variable, much more flexible than the final objectives, and they should be adjusted continually during the struggle” (Guerilla Warfare, 1961,Chapter 1, Section 3).

[18]As Speed and Reyes put it, “the power of ‘law’ is, in thought and in action, the power to produce and reproduce daily practices and subjectivities within society that continually reinforce the founding myth of sovereign power, that is, the power to create subjects that act as if all power emanates from the sovereign” (2005: 50).

[19]What U.S. political prisoner George Jackson diagnosed as fascism’s “most advanced form” (1990 [1972] “On Withdrawal,” Blood in My Eye, Black Classic Press); On the willful participation of once-revolutionary leaders, see Raúl Zibechi (2012) “The Art of Governing the Movements,” in Territories in Resistance: A Cartography of Latin American Social Movements, AK Press.

[20]Adam Hanieh (2013) “The Oslo Illusion,” Jacobin 10.

[21]Hardt and Negri (2004).

[22]Mara Kaufman (2010) We Are from Before, Yes, but We Are New: Autonomy, Territory, and the Production of New Subjects of Self-government in Zapatismo, Doctoral Dissertation, Durham: NC, Duke University (pp. 72-23).

[23]Additionally, the Councils serve to balance out inequities across communities that NGOs tend to produce: “Donations and help from national and international civil society will no longer be allowed to be earmarked to anyone in particular or to a specific community or Autonomous Municipality. The Good Government Council shall decide, after evaluating the circumstances of the communities, where that help most needs to be directed. The Good Government Council will impose the ‘brother tax,’ which is 10% of the total cost of the project, on all projects. In other words, if a community, municipality or collective receives economic support for a project, it must give the 10% to the Good Government Junta, so that it can earmark it for another community which is not receiving help. The objective is to balance somewhat the economic development of the communities in resistance. Leftovers, charity and the imposition of projects shall, of course, not be accepted” (EZLN 2003 “The Thirteenth Stele, Part 6: A good government” [communiqué]). For more on the change in the Zapatistas’ relationship to NGOs, see Mary Ann Tenuto (2005) “NGOs and the Zapatistas” Left Turn.

[24]Alvaro Reyes and Mara Kaufman (2011) “Sovereignty, Indigeneity, Territory: Zapatista Autonomy and the New Practices of Decolonization,” South Atlantic Quarterly 11 (2): 505-525 (p. 511).

[25]Ibid.

[26]“[I]f power is a productive practice,” Kaufman writes, “and if different practices are productive of different systems, subjects, and tendencies, then the existence of government is not a moral or ideological question of bad or good, but one of evaluating which strategies and practices produce what kind of systems, subjects, and tendencies,” Kaufman (2010: 72-73).

[27]Subcomandante Insurgente Marcos (2003) “The Thirteenth Stele, Part 6: A Good Government” [communiqué].

[28]Kaufman (2010: 91).

[29]Kaufman (2010: 91-92), original emphasis.

[30]Speed and Reyes (2005).

[31]Speed and Reyes (2005: 72). Although “indigenous rights” make it difficult for the Mexican State to directly repress and violently destroy the Zapatistas and their bases of support, the State, in its own tactical maneuver, now makes frequent use of paramilitaries that operate with the open protection of public security (state police). See Hermann Bellinghausen (2012) “‘Officialist’ paramilitaries dispossess Zapatista Support Bases, Denounces Junta,” La Jordana (1 November). The Zapatistas, however, continue deploying “indigenous rights” as a rhetorically useful tool for exposing to national and global audiences the Mexican State’s myths about itself as peaceful.

[32]An important component of Speed and Reyes’s essay (2005) is an analysis of the process of training Zapatista delegates with the Red de Defensores por los Derechos Humanos (Community Human Rights Defenders Network), an organization Speed and Reyes both served advisory roles in.

[33]Ibid.; EZLN (2005).

[34]EZLN (1996) “The Fourth Declaration of the Lacandón Jungle” [communiqué].

[35]For a brief sketch of the history of autonomous struggles, see Harry Cleaver (2006) “Paths of Autonomy” [Trayectorias de la Autonomia], Keynote address to the Conference on La Autonomía Posible: Reinvencion de la política y emancipación at the Universidad Autónoma de la Ciudad de México, October 24-26 2006.

[36]Raúl Zibechi (2010) Dispersing Power: Social Movements as Anti-State Forces, AK Press.

[37]Yasser Munif (2013) describes: “The council allocated areas of responsibility, such as looking after refugees, connecting with different political parties and so on. This council was selected out of the local committees, known as tansiqiyat, a network of activists that developed in different neighborhoods at the onset of the revolution” (“Syria’s Revolution Behind the Lines,” Socialist Review).

[38]Zibechi (2010: 2).

[39]EZLN (2005).

[40]Nimer Sultany (2012) “The Making of an Underclass: The Palestinian Citizens of Israel,” Israel Studies Review 27 (2): 190-200.

[41]That many descriptions of Palestine today adopt terms that originated outside of the country, such as “ghettoization,” “Bantustanization,” “apartheid,” and “Jim Crow,” further underscores the point.

[42]Speed and Reyes (2005: 62).